Sick Employees and Potential Workplace Exposure to COVID-19
The world remains in the midst of the COVID-19 pandemic. For businesses that are currently providing essential services (and for businesses already thinking ahead about an eventual return to normalcy, once the statewide Stay-At-Home order is lifted), how to address employee contact with COVID-19 is and will be a challenge. Employers must prepare and implement protocols for addressing employees who are or have been diagnosed with COVID-19, or who have been exposed to COVID-19. Understanding the limits on what kinds of employee medical information can be required from affected employees – and provided to potentially exposed co-workers – is crucial for all California employers. The pandemic has created a variety of potentially costly but avoidable violations of employee privacy rights.
The following is a general checklist of policies and strategies designed to minimize potential privacy violations while maintaining a healthy and safe workplace for employees, clients and customers alike. Keep in mind, every workplace is different, and business owners should consult legal counsel with specific questions.
Employee Reporting Policies During the COVID-19 Pandemic
For California employers providing designated essential services and who currently have employees physically reporting to work, those employers should notify employees regarding their obligation to timely report the following information to Human Resources or Management:
- Any travel to a high risk zones, or areas for which quarantining and self-sequestering are recommended, or have been in contact with individuals who have traveled to such areas;
- Any COVID-19 symptoms or have been in physical contact with anyone who has exhibited such symptoms; or
- Any diagnosis of COVID-19 or physical contact with someone diagnosed with COVID-19.
With this information, employers will be better positioned to provide a safe and healthy workplace.
Employee Requests to Return to Work Following Illness From or Exposure to COVID-19
Of course, employees who are actively suffering COVID-19 symptoms should not be permitted to physically report to work. However, at a certain point, employees who have been out due to COVID-19 infection or related precautions must be allowed to return to work. Considering your specific workforce and needs, there are return to work policy options for employers to consider adopting during the pandemic, including:
- The 14 day rule – Some employers set a blanket rule that all employees reporting a heightened risk for – or exposure to – COVID-19 must remain self-quarantined and cannot physically report to work for at least 14 days after exposure/potential exposure, either with or without a doctor’s note.
- If possible, remote work should be offered to such employees.
- Medical clearance – Other employers require employees who have been ill or exposed to COVID-19 to obtain a medical note from a healthcare provider clearing them to report to work without restriction and certifying that they are symptom free.
Whichever policy route is selected, employers should consistently apply such policy to all employees.
Notifying Employees of a Potential Exposure to COVID-19
Employers must be prepared to respond when an employee suffers flu-like symptoms after physically reporting to work, thereby potentially exposing other persons, including co-workers, to COVID-19. First and foremost, employers must adopt policies to protect the privacy of its employees, including those who contract COVID-19, to the greatest extent possible.
Tips for E-mail Exposure Notifications and Related Procedures
- Do not send an email announcing “John Doe” has Coronavirus. Leave employee names out of such group notifications. Instead, simply announce that an employee has tested positive or been exposed to someone who has tested positive. Also, do not share the employee’s medical information, aside from the fact of testing positive or having been exposed.
- The Department of Fair Employment and Housing recommends the following language: “[Employer] has learned that an employee at [office location] tested positive for the COVID-19 virus. The employee received positive results of this test on [date]. This email is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”
- Also, if possible, in advance, provide a copy of the notification message to the ill or exposed employee to get their buy-in before sending it out to other employees.
- If an employee reports COVID-19 illness and works exclusively remotely, do not send out a notification to other employees since there is no risk to other employees.
- Work with the sick or exposed employee to determine a list of employee and/or customer contacts within the last 14 days and notify those employees/customers of their potential exposure.
- Given the level of exposure to the ill employee, it may be necessary to send exposed employees home. When sending these employees home, do not identify the infected employee by name or you risk a violation of confidentiality laws.
- If working in a shared office building or area, inform building management of the ill employee so they can take whatever precautions they deem necessary.
- The CDC provides that the employees who worked closely to the infected worker “should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).”
How long should employees who worked near the infected employee stay at home?
- Those employees should first consult and follow the advice of their healthcare providers or public health department regarding the length of time to stay at home. At a minimum, such employees should remain at home for three days without a fever (achieved without medication) if they don’t develop any other symptoms.
- If they develop symptoms, follow the same return to work policies used for infected employees.
- The CDC has released updated relaxed guidelines for critical infrastructure workers, as previously defined by the Cybersecurity and Infrastructure Security Agency, who have been potentially exposed to COVID-19.
- Under the relaxed guidelines, critical infrastructure workers who have been potentially exposed to COVID-19 may continue to work following exposure if they remain symptom-free and their employers implement additional precautions to protect the employee and the community. This includes temperature measurements before workers enter the work facility, regular worker monitoring of their own health, and vigilant social distancing including while on the job. Employers should provide workers with face masks, and frequently clean and disinfect all common and work areas.
Governor Newsom’s Announcement to Re-Open California
California has been under a Stay-At-Home order since March 19, 2020. On Tuesday, April 14, 2020, Governor Newsom announced his current plan for easing COVID-19 restrictions in California. At this time, it appears that the statewide Stay-At-Home order will continue for the foreseeable future and that remote work, social distancing, and staggered school schedules will continue to be necessary and will continue to impact businesses and workers. As such, businesses must continue to implement policies and protocols for remote work schedules, increased flexibility, and diligence with local public health orders as the state continues its efforts to reduce virus transmission.
Allowing employees to return to work after COVID-19 illness and notifying employees of a potential COVID-19 exposure can be daunting for employers and often requires a case-by-case assessment and strategy. We are here to assist with employee return to work policies and drafting and/or reviewing employee exposure notifications. Please do not hesitate to contact us!
